Should Employers Mandate the COVID-19 Vaccine?

Today’s post comes to us from Workforce Institute board member, Kate Bischoff.

The full approval is finally here. The Food and Drug Administration approved the Pfizer-BioNTech COVID-19 vaccine for use in people 16 and older. This includes the bulk of the 161 million folks in the U.S. workforce. So, as an employer, should you mandate the vaccine for employees and applicants? (Many employers may not have a choice if they receive Medicare and Medicaid funding or are a federal contractor with employees onsite.)

Let’s go through some analysis. 

  1. How do your employees work together? Employees who work physically close to each other — think manufacturing, food service, construction, healthcare — are actually close to one another. They could get each other sick and often do during non-pandemic years. (Sorry, non-pandemic years used to be a thing.) If employees work closely together, then incentive exists to require vaccination. If your office is 100% work from home, 100% of the time, then there may be little need to require vaccination.
  2. Do employees work with the public? The public is a bit scary right now with the Delta variant. Your employees don’t know who is practicing social distancing all the time, who is washing their hands regularly, and who doesn’t lick random strangers. Moreover, many of your customers or guests are leery of being out in public with other people, including your employees, for fear of exposure. Exposure increases with the number of people someone meets, so your employees are coming into contact with a lot of people, increasing their risk.
  3. Do you require other vaccines? Tuberculosis and the flu vaccine are very popular mandates for many employers in many different industries. If you’re already requiring vaccines, then go ahead and mandate this one.
  4. How easy is it for employees to get vaccinated? So easy and free! Employees can visit vaccines.gov to find a site near home or work. And, in many places, there might even be cash incentives from the state to get vaccinated. You can even contact your local health department to see if they can help coordinate bringing the vaccine on premises, making it even easier. 
  5. Do you want to incentivize getting the vaccine? Cash, time off, and other perks on top of time off to get the vaccine itself are great motivators to get vaccinated. You can both incentivize and require.
  6. Are you ready to terminate someone who refuses to get vaccinated? This one is particularly difficult to analyze. Quite frankly, it may not come down to this for many employers, as so many employers are already mandating. To do this, employers will likely first suspend an employee (without pay) for an additional period, and if the employee still does not get vaccinated, consider termination.

Of course, employers must be ready to reasonably accommodate employees who need an exemption from vaccination for their religious or disability-related reason. For these employees, continuing to work from home if they can or requiring them to wear a KN95 facemask may be another option.

Lastly, do not fear a lawsuit for your mandate. The U.S. Supreme Court has upheld vaccine mandates before. The U.S. Court of Appeals for the Seventh Circuit has already upheld a COVID-19 mandate for a university system, and a court upheld a mandate for a large Houston-area healthcare company. While, of course, employers could always get sued, employers who have done their homework, documented why they mandate, and carefully explain the mandate to employees will likely not be on the receiving end of a lawsuit. It’s lawful to both ask for vaccination status and mandate the vaccine. Period. End stop.

Now, go out there, be safe and healthy. Please.

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